Monday, November 21, 2005

Circumlocution

Sometimes, when you are a lawyer, you wake up on a Monday morning and you feel like you have no idea what it is that you do. You know that you read and write, look up applicable rules, look up the definitions of things, but you have this creeping feeling that you don't actually know anything.

It's also a bit unsettling as you dwell on this and come again to realize that you have no idea what the law is. Again you remember that the law exists in no place. We have only representations for it: the law is nothing but words. There is nothing behind those words. The law has no materiality. It lives on as a collectively sustained fiction: we imagine and believe it to exist and to matter.

At this point, one makes the obligatory reference to Kafka’s parable, “Before the Law”:

BEFORE THE LAW stands a doorkeeper. To this doorkeeper there comes a man from the country and prays for admittance to the Law. But the doorkeeper says that he cannot grant admittance at the moment. The man thinks it over and then asks if he will be allowed in later. "It is possible," says the doorkeeper, "but not at the moment."

The perpetual problem of the law is, of course, that we can’t ever really agree what these words should mean. This problem is most starkly illustrated when people are talking about the Constitution. People say, for example, that “there is no right of privacy in the Constitution”. And that’s true, insofar as there is no clause in the Constitution or its amendments stating that there is right to privacy (just as there’s no clause anywhere stating that citizens have the right to vote). But others, looking at the same document, say the Constitution protects a right to privacy. The trick is usually what these people mean when they say “the Constitution.”

There is the actual Constitution, and the words it contains. This is simple and easily located. The rub is that the Constitution at various points explicitly demands to be interpreted over time; the founders did not imagine that they could foresee all future developments: hence the open texture of certain provisions such as “equal protection”, “due process,” and “cruel and unusual”. These are vague standards; they clearly require interpretation over time, in the new and unforeseen contexts in which they arise (e.g., affirmative action, loss of welfare benefits, etc.).

So beyond the text of the Constitution are the judicial declarations – in words – of what the words of the Constitution mean. Often, when lawyers, judges or politicians say they “see a right of privacy in the Constitution” they are referring to judicial opinions interpreting the Constitution. Those judicial opinions, over time, become settled and ingrained in the body of American Constitutional law; after some point, it is legitimate to say that the Constitution protects privacy because the Supreme Court (and innumerable lower court decisions) have said this over and over for decades. However, even these decisions are left open to interpretation.

It’s a bit disorienting, when you consider that judges, lawyers, and politicians, each with their own agenda, view the same document and the same opinions and reach such disparate conclusions. Even Supreme Court opinions interpreting the Constitution are left very much open to interpretation, and lower courts in the various circuits of the country often do reach conflicting readings of the effect of a specific Supreme Court opinion. I guess this is a problem to expect when you have a system that attempts to create a unified system based on words. Everywhere “misunderstandings,” purposeful or not, will arise. The Supreme Court says, for example, interpreting the Constitution, and the right of privacy that the Court has interpreted that document to contain, that the state may not place “undue burdens” on the right to abortion – but no one agrees on what these words mean, no more than they agreed on whether the various words of the Constitution, read together, produced a right of privacy.

It’s also disorienting to consider that, to some extent, the Constitution is an illusion. Judges say that they are simply stating what the Constitution says. But what the Constitution says – as we are told by the courts – changes rapidly over time: there is no stable Constitution. It is but layer upon layer of readings, each provisional, connected, sometimes loosely, to prior readings, each theoretically producing the subsequent readings.

Since the gate stands open, as usual, and the doorkeeper steps to one side, the man stoops to peer through the gateway into the interior. Observing that, the doorkeeper laughs and says: "If you are so drawn to it, 'just try to go in despite my veto. But take note: I am powerful. And I am only the least of the doorkeepers. From hall to hall there is one doorkeeper after another, each more powerful than the last. The third doorkeeper is already so terrible that even I cannot bear to look at him." These are difficulties the man from the country has not expected; the Law, he thinks, should surely be accessible at all times and to everyone, but as he now takes a closer look at the doorkeeper in his fur coat, with his big sharp nose and long, thin, black Tartar beard, he decides that it is better to wait until he gets permission to enter.

Meanwhile, readings and interpretations proliferate: congressmen, state courts, federal trial courts, the Vice President, Governors, newspaper columnists, bloggers, and law professors see a thousand different Constitutions.

During these many years the man fixes his attention almost continuously on the doorkeeper. He forgets the other doorkeepers, and this first one seems to him the sole obstacle preventing access to the Law. He curses his bad luck, in his early years boldly and loudly; later, as he grows old, he only grumbles to himself. He becomes childish, and since in his yearlong contemplation of the doorkeeper he has come to know even the fleas in his fur collar, he begs the fleas as well to help him and to change the doorkeep er's mind.

We can only hope to persuade others – most especially those granted, through our system of consent and belief, the power to say what the law is – to accept our view of what the law is. To persuade others, we point back to the Constitution, and its various authoritative interpretations, and argue for our interpretation, attempting to show that the archive of the Constitution contains and therefore dictates our view. Meanwhile, the law eludes us.

At length his eyesight begins to fail, and he does not know whether the world is really darker or whether his eyes are only deceiving him. Yet in his darkness he is now aware of a radiance that streams inextinguishably from the gateway of the Law. Now he has not very long to live. Before he dies, all his experiences in these long years gather themselves in his head to one point, a question he has not yet asked the doorkeeper. He waves him nearer, since he can no longer raise his stiffening body. The doorkeeper has to bend low toward him, for the difference in height between them has altered much to the man's disadvantage. "What do you want to know now?" asks the doorkeeper; "you are insatiable." "Everyone strives to reach the Law," says the man, "so how does it happen that for all these many years no one but myself has ever begged for admittance?" The doorkeeper recognizes that the man has reached his end, and, to let his failing senses catch the words, roars in his ear: "No one else could ever be admitted here, since this gate was made only for you. I am now going to shut it."